Jury Prejudice: Is the Presumption of Innocence Possible?

Any experienced criminal trial lawyer will tell you that one of the toughest things to get across to a jury is the presumption of innocence. In section 11(d) of The Canadian Charter of Rights and Freedoms provides that:

"11. Any person charged with an offence has the right ...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"

Juries in a criminal trial in fact are tempted to start off with the presumption of guilt. Most often the obvious question swimming in the minds of prospective jurors is, "Why would the police charge you if you did nothing wrong?"

We are constantly bombarded through the media with the stereotypical images of people who commit violent or drug-related crimes. Over time in our minds' eye, we build a graphic social composite of what a real criminal is supposed to look like. Most often that pervasive image has to do with a black male in his early 20s.

In many instances our reptilian brains takes over and the analysis and the objectivity that we are supposed to have as reasonable people quickly gets lost. In any jury trial I tend to confront this reality head on. At times, the atmosphere in the court becomes very tense and uneasy when I openly speak of things like race and class, but I want to lay the cards on the table. I tend to speak of things the way they are, not as they ought to be. Perhaps it is trite to say, but juries, judges, the police and the lawyers within the criminal justice system do not live on Mars. We are all subject to the same prejudices and preferences that permeate the social ether at large.

The transference of the dark hidden prejudices within our society is often a subtle process. In Canada these realities are never obvious on the surface. To the casual observer who lives in the Obama era, we are all equal under the law and anything is possible regardless of the colour of one's skin. Sadly, the reality in a typical criminal jury trial is different. In order to address this reality, the current law allows criminal trial lawyers in Canada to ask only one or two questions regarding race to a prospective juror. The exact nature of the racial bias question asked by a defence lawyer is very restrictive.

The law states that in some cases, even if a prospective juror has a racial bias against the accused but can still claim to be fair and impartial, that person is still eligible to sit on a jury! Anyone who is a student of human nature will acknowledge that in 2011 it is very difficult for any person to openly admit racial bias in a courtroom full of strangers and court officials.

As trial lawyers we tend to look for things beyond the mere spoken words by a prospective juror -- we tend to rely on body language and a gut feeling. For an accused person, it is often a scary prospect to have a total stranger decide his fate. It is for this reason, that I usually have my client stand to my left as we are picking a jury. If he happens to have a "bad feeling" about a prospective juror, he is instructed to subtly touch my arm and I dismiss that prospective juror. The art of picking a jury is an inexact science, and it is not lost upon me that it is very likely that as lawyers we are often exercising our own prejudices and subjective biases that we have perfected over the years when picking a jury.

In any high-profile case where the media is involved, the more sensational the allegations, the inference of guilt usually quickly attaches. We have all seen the talking heads quickly appear on television screens and offer their "expert" opinions in strong low tones. We have all seen the recent instant media judgment that can be inflicted upon individuals who were supposed to be presumed innocent before their actual trial in the USA.

In the case of Dominique Strauss-Kahn, he was quickly labelled a monster and a rapist who had repeated this behaviour in the past. The not-so-subtle race and class analysis in a rush to judgment was also conducted. The initial story of a rich and powerful French politician raping an immigrant hotel maid was told to us in lurid detail. The talking heads spoke about the "French culture" and how men are allowed to behave totally above the law when it comes to sexually assaulting women in France.

We eventually discovered that the maid in question had previously made false gang rape allegations and now has other serious issues with her credibility including but not limited to her affiliation with serious drug dealers.

I remember when the DSK prosecutors were going to the media and saying things like "evidence is substantial and growing every day." I also remember the prosecution repeating to the media that the complainant had told a "compelling and unwavering story." The initial huffing and puffing about DSK's "obvious guilt" have died down and the prosecutors seem to be trying to save face and desperately seeking a quick exit from this public fiasco. The initial public rush to judgment in this matter should be remembered by us when the matter finally is put to rest.

All of the juries that I have appeared before take their jobs very seriously. They well know that they are deciding the fate of a fellow citizen. I often remind them that they must raise themselves to a higher ground. The presumption of innocence is a cornerstone of our democracy. This inalienable right did not come to us naturally or without a vicious epic world struggle. We should remind ourselves that in other parts of the world the fundamental legal premise of being presumed innocent is not remotely applicable.

Criminal trials in such countries end in a few hours with the accused kneeling in a soccer field for a public beheading soon thereafter. We in Canada do not have a perfect system of justice, but we are certainly closer.